Pizzaro v. City of New York

• Decision Date: 21 December 1992
• Citation: Pizzaro v. City of New York, 591 N.Y.S.2d 485, 188 A.D.2d 591 (N.Y. App. Div. 1992)
• Parties: Daniel PIZZARO, Appellant, v. CITY OF NEW YORK, et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 485

591 N.Y.S.2d 485

188 A.D.2d 591

Daniel PIZZARO, Appellant, v.CITY OF NEW YORK, et al., Respondents, et al., Defendant.

Supreme Court, Appellate Division Second Department.

Dec. 21, 1992.

Glaser, Shandel & Blitz, New York City(Fred R. Profeta, Jr. and Kathleen M. Barrett, of counsel), for appellant.

O. Peter Sherwood, Corp.Counsel, New York City(Stephen J. McGrath, William J Thom, and Thomas J. Leonard, of counsel), for respondentCity of New York.

Lester Schwab Katz & Dwyer, New York City(Steven B. Prystowsky and Eric Portuguese, of counsel), for respondentMansfield Contracting Co.

Sheft & Sheft, New York City(Leonard G. Kamlet and Julian D. Ehrlich, of counsel), for respondentRock Palace, Ltd.

Before LAWRENCE, J.P., and EIBER, O'BRIEN and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief from (1) so much of an order of the Supreme Court, Richmond County(Leone, J.), entered March 9, 1990, as granted the motions of the defendantCity of New York and the defendantRock Palace, Ltd., for summary judgment dismissing the complaint insofar as it is asserted against them and any cross claims interposed against them, and (2) so much of an order of the same court, entered August 23, 1990, as (a) granted the motion of the defendantMansfield Contracting Company to renew its motion for summary judgment dismissing the complaint and cross claims interposed against it, and upon renewal, granted the motion for summary judgment, and (b) upon reargument of the motion of the City of New York for summary judgment, adhered to the original determination.

ORDERED that the appeal from so much of the order entered March 9, 1990, as granted the motion of the defendantCity of New York, is dismissed, as that provision of the order entered March 9, 1990, was superseded by the order entered August 23, 1990, made upon reargument; and it is further,

ORDERED that the orders are affirmed insofar as reviewed; and it is further,

ORDERED that the respondents are awarded one bill of costs.

During the early morning hours of February 6, 1982, the plaintiffDaniel Pizzaro was a passenger in a car which left the roadway and crashed into a ditch beyond the "T" intersection formed by Bridge Street and Gulf Avenue in Staten Island.The plaintiff, who sustained serious injuries in the accident, subsequently commenced this action against Thomas Dolan, the operator of the vehicle involved in the crash, Lorraine Dolan, the vehicle's owner, the City of New York, the Mansfield Contracting Company(hereinafter Mansfield), the contractor responsible for maintenance and repair of the street lighting at the accident site, and Rock Palace, Ltd.(hereinafter Rock Palace), the Staten Island bar where the driver and his passengers had been drinking before the accident.The plaintiff alleged, inter alia, that the City had been negligent in failing to adequately warn motorists that the roadway terminated at the "T" intersection where the accident occurred, and that Mansfield had been negligent in failing to properly maintain, repair, and inspect the lighting at the accident site.The plaintiff further alleged that Rock Palace had violated the Dram Shop Act(General Obligations Law § 11-101) by serving intoxicating liquors to Thomas Dolan although he was actually or apparently intoxicated.

Following discovery, the City, Mansfield, and Rock Palace moved for summary judgment based primarily upon the testimony Thomas Dolan at an examination before trial.At his deposition, Dolan testified that the accident occurred when he swerved to avoid a collision with another vehicle.Dolan also testified that although the intersection was dark, he was able to see that the road ended beyond the "T" intersection.The Supreme Court ultimately awarded summary judgment to the three moving defendants, concluding, inter alia, that Dolan's deposition testimony established that any negligence on their part was not a proximate cause of the accident.

On appeal, the plaintiff contends that the Supreme Court erred in awarding summary judgment to the City because triable issues of fact exist in regard to the causation of the accident.In support of his claim, he points out that although Dolan claimed that he swerved to avoid a collision with another vehicle, the deposition testimony of the three passengers in the vehicle at the time of the accident indicated that they did not see or hear a second vehicle.However, the passengers' testimony is not inconsistent with Dolan's testimony, since they testified that they were either asleep or not paying attention prior to the accident.Moreover, although a police officer stated that he did not discover any skid marks at the accident scene, the officer's testimony does not contradict Dolan's version of the accident, since Dolan never testified that he applied his brakes.In view of the plaintiff's failure to present any evidence in admissible form indicating that the City's failure to warn of the hazards of the "T" intersection was a proximate cause of the accident, the court properly granted summary judgment to the City (see, Sheehan v. City of New York, 40 N.Y.2d 496, 387 N.Y.S.2d 92, 354 N.E.2d 832;Andersen v. Betz, 150 A.D.2d 743, 542...